Why Tribunals have to consider the government definition of bedroom

Today I put out a blog on the government definition of a bedroom.  Some have argued this is irrelevant and a mere proposed future standard and only on new build properties. They are entitled to their view but here I say why they are wrong.  I fully stand by my view that the government definition is a game changer in appealing the bedroom tax decisions and here I say why.

In very short terms it is the absence of a legislative or regulatory definition means Tribunals will have to consider this government definition and it accords with their remit and purpose to answer the central question of What is a bedroom? Tribunals primary role is to determine fact in the absence of a legislative or regulatory definition and in doing that Tribunals look at all ‘ponters’ as to that question of what is a bedroom.

Tribunal look at tenancy agreements and older HB claim forms as ‘pointers’ too which everyone accepts and they look at all the room size appeal arguments to be found in overcrowding legislation and in the Housing Act 2004 and accompanying 2009 LACORS guidance etc.

It is PRECISELY the absence of a legislative or regulatory definition that they HAVE to consider this government definition.

The role and purpose of the first tier Tribunal is to fact find and here we have a government definition that is considered and is reasonable in its definition.  This is no outlandish definition of what a bedroom is unlike the bizarre and perverse IDs view expressed in the U6 HB circular issued a month AFTER the CLG, published their view of what a bedroom is in such considered terms.

This considered and reasonable view is a definition from this government of the core question of what is a bedroom and reading this simply as a future proposal and only for new build is fundamentally wrong.

Read on.

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What is a bedroom?

That simple question is the central question in the bedroom tax policy and the policy is called the bedroom tax as the deduction in HB can ONLY apply to a bedroom and not to any other room.  The ‘spare room subsidy’ term is a huge misnomer as the ‘subsidy’ cannot be reduced on a room, it has to be a bedroom as the legislation is unambiguous about.

The bedroom tax is a question of what is a bedroom and how do we define the term ‘bedroom’ and not whether a room is spare or not.

What is a bedroom is the ONLY question that can be asked when the policy reduces Housing Benefit if the claimant, the social housing tenant is deemed to have too many bedrooms.  You simply cannot escape making a judgement of what a bedroom is or is not in making the decision, and similarly the Tribunals at appeal have to make that determination to decide whether the Social Sector Size Criteria, the correct name for the policy is correct and legally reliable.

The social sector SIZE criteria as the correct name for the policy gives us a huge clue.  A bedroom under any definition must include a size element; it must be of a dimension or dimensions to accommodate what a bedroom consists of.

The decision maker, who is and is ONLY, the council HB officer has to decide the bedroom tax decision and to make that decision they have to come to a definition of the term ‘bedroom.’  Even as they all did rely upon paragraph 12 of the A4 2012 HB circular which says “…it is up to the landlord to accurately describe the property…” and took this “up to the landlord” wording as definitive the council HB Officer took that definition and made a definition of the term bedroom.

Yet it has never been up to the landlord and cannot legally be up to the landlord for so many reasons.  Under law the parties to a HB decision are the claimant and the council and no one else and the definition of “parties” is found in HB regulations and in the legislation which governs the Tribunals.  It does not include the landlord as a party to the decision.

Then the A4 2012 HB circular, or bedroom tax guidance, says at paragraph 20 that the landlords did not have to provide the HB Officer with ANY information at all upon which to make the decision.

So even IDS as the Secretary of State Work & Pensions (SSWP) knew and acknowledged that the decision cannot be “up to the landlord” as local council decision makers claim: Local councils took the view that saying it was “up to the landlord” was the cheapest way for them to make the decision and that is all “up to the landlord” actually means.

Many Tribunal judges have said this as a matter of law and fact and the Bristol statement of reasons says that in no uncertain terms;

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“Nothing in the legislation makes the landlord’s definition definitive.”  That is a telling phrase and a legally accurate one yet the attention is drawn the ‘unscrupulous’ bit used to illustrate that legal point.   Landlords do not like this potentially ‘unscrupulous’ tag and rightly, yet more importantly they do not like what it means.  They say in response to this that are you saying the tenancy agreement which, usually but not always, states the number of bedrooms is not worth the paper it is written on – or similar.

Yet landlord hubris is not the issue and as I say above landlords are NOT a party to the bedroom tax HB decision, or in very blunt terms the bedroom tax decision is bugger all to do with the landlords. Landlords are entitled to have a view of course and what the tenancy agreement says is a pointer to the number of bedrooms a property or a dwelling has. But nothing more than that in a legal sense and the same landlords affronted by this need only look at paragraph 20 of the A4 2012 HB circular which says, unambiguously, that they were under no obligation whatsoever to provide the council with any information at all.

I restate even the SSWP accepts the landlord’s word is not definitive, it is merely a landlord’s view or opinion, that is all it is.

The government made a huge rod for their own back in steadfastly refusing to define the term bedroom. Government left it up for local councils to decide a definition of the term bedroom and knowing that local councils who administer HB on behalf of central government would simply decide to take the landlords view as it is the cheapest option.  No other feasible or expedient option exists other than local councils to make the bedroom tax decision, a decision that has to be legally reliable lest we forget, than to merely believe the social landlords word.

Those same local council HB Officers would not merely believe the private landlord’s view yet the SSWP expected them to merely accept the social landlord’s word. In fact when the bedroom tax decisions were first made ahead of 1 April 2013, all local councils had powers to refer cases of under occupancy to the independent rent officer service.  The SSWP however took away their powers to do that with the introduction of the bedroom tax on, ironically, April Fools Day 2013.

What this has all meant is that the ONLY way for a bedroom tax affected tenant to get a legally reliable decision is to go to the independent fact-finding, first tier Tribunal.

Ponder that for a moment – the only way for a tenant to get a lawful decision is to formally appeal to the Tribunal.  That stinks.  It stinks to high heaven and always has, but that is nonetheless the reality.  When the tenant gets to the Tribunal he or she is met with the purpose of the Tribunal to find FACT and that Tribunal decides the one and only question of what is a bedroom.

Until recently the government, as a collective body, refused to define the term ‘bedroom’ and in fact said “We will not be defining what we mean by bedroom in legislation” at the infamous paragraph 12 of the A4 2012 HB circular. Yet the Tribunal judges do not look to legislation they look to fact as Judge Moss said so cogently in the Sunderland Tribunal case referenced SC236/13/02942.  He said at [58] :

“The issue for the Tribunal is the meaning of the word bedroom.  It is not defined in legislation. It is an ordinary English word. Consequently it is a question of fact for this Tribunal to decide whether the room in question is a bedroom or not.”

The Tribunal decides each case on the individual facts of that case and as they appeared to be fact at the time the decision was made.  What the tenancy agreement may appears to be fact 10 years before or what a property may be re let as in 10 years time are irrelevant.  The facts as at the date of the decision is what counts as Judge Moss says at [66] in the above case.

What is fact and what is a bedroom, or what is a bedroom as a matter of fact is the purpose and the role of the Tribunal.

We come back to that same simple question whatever way we approach the bedroom tax decision – What is a bedroom? That simple question is inescapable and is the ONLY question in the morass of myth discussed about the bedroom tax / spare room subsidy / Social Sector Size Criteria; and by whoever puts in their fourpenneth word be it tenant, activist, landlord, local council or IDS and the DWP.

The Tribunal judge now finds that the government have, all along, had a stated definition of what is a bedroom and what a bedroom constitutes.  That government view says a single bedroom needs to be at least 7.0 square metres in dimension or 75 square feet.  It says a single bedroom needs to have a minimum width of 2.15 metres or just over 7 feet.  That government definition says a single bedroom need to include enough space to accommodate a single bed, a chest of drawers, a dressing table and chair and a bedside cabinet: It says too that there needs to be access space between these normal bedroom furniture items and enough access and activity space to make the bed or get dressed and undressed.  Yes this is not a legislative definition but it is a GOVERNMENT DEFINITION.

The Tribunal must evaluate and consider this definition of this coalition government.

The Tribunal, like any court, also has to consider long standing and tried and tested legal doctrines such as the man on the Clapham omnibus.  In short what would a reasonable fair minded and objective person say is a bedroom.  This is precisely why the fact this government definition is not in legislation is still highly significant and why in terms of the bedroom tax appeal it is a game changer.

The Tribunal must ask itself what would the ordinary person in the street say is a single bedroom and what a single bedroom contains.  Would this reasonable and venerable man say it is reasonable that a single bedroom contains a bed and wardrobe and chest of drawers and enough space to get dressed in and make the bed?  There can only be one answer to that and that answer is Yes.

The highly descriptive nature of the government definition, and bear in mind this is a MINIMUM definition too, is highly persuasive, and will be highly persuasive when argued at a bedroom tax Tribunal appeal hearing, and it IS something that each Tribunal judge must consider in determining its role of whether a room is a bedroom or not.

The DWP and some legal commentators don’t like this.  They are wedded to obscure legal procedural matters of HOW the term ‘bedroom’ should be interpreted and they will cite legal cases such as Pepper v Hart and Quintavalle is the correct way to look at the term ‘bedroom’ and not use Brutus v Cozens which is the ordinary English language way of asking what is a bedroom.  These legal commentators may assume that I have come to this opinion above through ignorance of these cases and I have not read many counsel opinions of what in pari materia and other legal phrases say and mean.  Or that I have read that Pepper v Hart which the DWP quote in their appeals is a largely discredited legal opinion in legal circles.  Perhaps they should read that the Upper Tribunal in the Bolton case also ruled that the term ‘bedroom’ is an ordinary English word or phrase and that is the correct way to interpret it in bedroom tax circumstances.

Many legal commentators said the size issues of appeal such as the 1985 Housing Act would not hold when I raised them yet many Tribunals were persuaded.  They said that room size arguments and the use of Uratemp to further them would not hold too, yet many Tribunals were persuaded.  Now they are saying that the government definition of what is a bedroom is not significant. Hmm!

As an aside and for absolute clarity the Upper Tribunal in Edinburgh this week may well conclude that the overcrowding legislation should not have been read into the bedroom tax decision.  I maintain it has to be considered not out of legal procedure but because it is a factor that Tribunals need and have to consider in light of the absence of a definition of bedroom in legislation or regulation.  The absence of any one determining factor such as this and the preponderance of size related factors as to what constitutes a bedroom HAS to be a consideration.  There are so many pointers regarding a minimum size that the fact finding first tier Tribunal would be erring in law by not considering such matters …and that is the governments own fault for steadfastly refusing to define the term ‘bedroom.’

Legal commentators were also initially aghast and outraged with the Jayson Carmichael case.  He was one of ten collective cases which lost in a judicial review at the High Court and gain at the Appellate court yet won on an individual fact basis which saw the mere first tier, fact finding Tribunal rule against the Court of Appeal. How dare it do that!!  Yet when they discovered his case was taken by barristers they put on their proverbial flip flops again.  Other legal commentators also then said the FTT route was the best way of getting a lawful decision on bedroom tax cases too after this Jayson Carmichael decision.

In admittedly crude but nonetheless valid terms, Tribunals find fact not merely interpret the law and that’s a huge difference to other courts and they are constituted that way and governed that way too unlike other courts and an alien concept to those who don’t work at Tribunals but only in other courts.  I have explained above why Tribunals will consider this very significant government definition of a bedroom and I stand by those reasons very strongly indeed.  This is a game changer in terms of appealing the bedroom tax decision, all of which are legally unreliable and politically and financially expedient decisions too.

Yet that would mean I must not be this arrogant upstart who dares speak out against the lawfulness of the bedroom tax and that my views are merely those of someone who has openly said his rationale is to get rid of the bedroom tax and gets blinded by or is ignorance of fact and is an easy target for the ‘shoot the messenger’ strategy legal commentator adopt repeatedly and whom I call naysayers.  Or those housing naysayers who said appealing the bedroom tax gives ‘false hope’ to tenants rather than some hope and hope that has materialised into winning appeals and given tenants their life back after the bedroom tax decisions imposed were proven to be legally unreliable and the sham I have always maintained.

What is a bedroom reader?  Forget my view and forget the naysayers view and, more importantly, consider how will Tribunal determine that simple question?  If Tribunals, and some will, hold onto the ridiculous legal fiction of IDS that a bedroom is merely a room that can fit in a single bed alone with no other furniture and no access and no activity space, then those Tribunal decisions are wide open to appeal further as they would be unreasonable and not give enough weight to fact and to how the man on the Clapham omnibus would decide what is a bedroom.

Be in no doubt the highly prescriptive government definition of what is a bedroom is a game changer in appealing the sham decisions taken by local council HB Officers made with IDS’s thumbprints in the back of their heads.  Time for all bedroom tax affected households to appeal and put this offensive and ill conceived policy to bed.

The law cannot operate without the MOTCO doctrine as it is a benchmark of what is reasonable and what the ordinary reasonable man would say is reasonable.  The law would have to invent a concept of reasonableness if MOTCO did not exist.  Yet it does exist and has been around since Victorian times and ratified again and again recently by the Supreme Court and upheld once more.  It is a central doctrine and concept in determining both law and fact and Tribunal will use it and will use it in conjunction with the governments stated definition of what a bedroom is.

The government definition is not just a proposed MINIMUM standard; it is the government’s stated view and considered view of what a bedroom constitutes.  It cannot and will not be ignored as being irrelevant because it is not in legislation or regulation; it is precisely the fact that it is not in legislation or regulation that says why the Tribunal will use it to interpret the term ‘bedroom’ and Tribunals have little choice but to do precisely that.

 

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10 thoughts on “Why Tribunals have to consider the government definition of bedroom

  1. Thanks again Joe, both of these bloggs from today will be incorporated into ReClaims submissions, we still have over 20 appeal dates in diary and have been successful with 26 Bedroom Tax Tribunals, we are currently waiting for two decisions, the fight goes on!!!

  2. That’s what many are saying……………. It’s only for new builds and can’t be retrospective. We do need people to add this to their BT appeals and see what the Judges have to say?? Hopefully, in our favour, which would be of huge significance………

  3. Hi, Joe. Is it possible please to point me in the direction of where this info is. So, we could have a file for people to send with their appeals?? Rather than having to send your whole post!! On the Stop appeal group.
    I’ve been trying to do loads of research on space standards.
    There doesn’t seem to be anything since Parker Morris 1963.
    Grant Shapps in 2011 apposed introducing any.
    Although, Boris Johnson wants to introduce them for London.
    Help, would be appreciated. Thank you.

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